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The best approach to keeping former employees quiet, Davis says, is to tie agreements about future behavior, non-disclosure, and so on, to a severance agreement. Keep the payoff for a date in the future, and make it clear, "If you violate this agreement, we won't pay you your money."
Davis is CEO of Davis & Company (davisandco.com). She made her comments at a recent webinar.
What about Employees with No Severance Package?
"If you don't offer severance, you don't have as many rights for controlling ex-employees. You can try to sue for slander or libel," Davis says, "but that's a difficult case to make because you have to prove damages to the company."
If an ex-employee who has no severance were to blog "I was fired, and here are the facts," you've got no basis for legal action, Davis says. If the person blogs, "I hated my boss," you've got no basis for action. If the person discloses "Here are my company's confidential plans and financial data," now that could be the basis for legal action, Davis says.
Proactive Steps You Can Take
How should you go about setting boundaries and guidelines for your employees and ex-employees? Start with your current employees, says Davis.
"There is no right or wrong answer about how to approach it; you have to decide as a company where you fall," Davis says. She thinks of it as color-coded:
Green—You encourage employees to contribute to social media sites. In other words, you decide that use of social media has equal or more benefit than risk.
Yellow—You acknowledge that employees participate and outline expectations—you may do this but not that, what you do at home is your own business except for this and that. In other words, you don't intend to prohibit use, but there are rules.
Red—No, you're not letting anyone engage in this activity. In other words, you are going to restrict employees to using company electronic resources only for business-related matters. This approach is necessary for certain industries, for example for defense contractors, Davis notes.
For many employers, the first level of interest is to ensure that the personal use of social networking websites or systems does not interfere with working time. In any event, when employees are involved with these sites, it must be clear that they are not acting as a spokesperson for the company, Davis says.
Finally, Davis says, "don't forget logos. That's a big one for many companies. You really don't want people splashing your logo all over their Web pages."
Social media. Just one of dozens of challenges on the HR desk—COBRA changes, FMLA intermittent leave, ADA accommodation, off-the-clock workers, just to name a few.
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